April 07, 2008

After the 2008
presidential election season concludes, no doubt there will be calls to change
the presidential nomination system, especially on the Democratic Party
side. Already before the current season
began, Congress explored legislation to prevent the “frontloading” of the
primary process through the creation of a series of rotating regional
primaries.[1] The close contest for the Democratic Party nomination this winter and
spring revealed additional issues beyond the timing question. Critics have argued that the caucus system used
in some states is unfair and poorly administered,[2] that the unequal weighting of votes
for purposes of delegate selection violates democratic principles,[3] and that the fate of the Democratic
Party presidential nomination should not turn on the votes of unelected “superdelegates.”[4]

It is certainly possible
that the parties themselves will change their nomination rules in response to
these criticisms, as the parties have done in the past. But in the event the parties cannot agree on
changes, Congress may consider legislation imposing changes to make the
nomination rules comply more with the typical “one person, one vote” norms
applicable to general elections. At the
extreme, Congress might require presidential nominations to occur through
state-by-state direct primaries conducted under one person, one vote
principles. Here, I explore the question
whether Congress has the power to impose such primaries on the parties and the
states if the parties, states, or both object. I do not consider the wisdom of such legislation.

As I explain, the main
argument that parties can advance against Congressional (or for that matter,
state) imposition of a direct presidential primary is that it violates the
First Amendment associational rights of political parties to determine their
method for choosing their standard bearers.[5] This argument would appear to have much force
given recent Supreme Court cases recognizing the parties’ rights to overrule
the states on the open or closed nature of political primaries. On the other hand, the Court has also
accepted as “too plain for argument” a governmental power to require parties to
use direct primaries to choose their nominees to assure fairness of the
process.[6] So resolution of the question is
uncertain.

California, like
all states but two, chooses its electors in a single statewide winner-take-all
contest. California has been reliably
Democratic in recent presidential elections, and the result is that neither
major party candidate has seen fit to campaign in the state, despite the fact
that, at fifty-five electors, its delegation is the nation’s largest by some
measure. Other populous states with a
decided political tilt, like Texas, New York and Illinois, are similarly given
short shrift in presidential campaigning. The large “swing” states like Florida, Pennsylvania, and Ohio get almost
all of the general election attention these days from major-party presidential
candidates.

The campaign
neglect has apparently rankled in California, and the state has become the site
of a great deal of reform effort. The
most recent proposal[1] would change
California’s winner-take-all approach to the system found in Maine and
Nebraska, where all but two of the electors are determined by the popular vote
in individual congressional districts. Maine’s and Nebraska’s use of
districting (since the 1972 and 1992 elections, respectively) attracts little
attention because those states have small numbers of electors (and, to boot,
the districting has never yielded a split electoral college delegation in
either state). A major claim on the
website of the organization sponsoring the California move is that this would
make the presidential elections in the state more “democratic” by making the
process competitive. While the problem
of competitiveness in California and other non-swing states is real, the
suggested cure in California—without similar action by other states—is a
terrible idea.

December 07, 2006

We all know that the Democrats gained a decisive House of Representatives majority in the 2006 election, so that their party will be comfortably in control of that body in the Congress that will convene in early January of 2007. As of the time I am writing this, the Democrats have clearly won 231 of the 435 House seats for the new Congress, with five races still undecided.[1] With a majority of that size, we can say with great assuredness that the Democrats will be able to elect the new Speaker and name Chairs for House committees. That is the sense in which the Democrats will be in control—a very important sense indeed. When they stick to their partisan guns, moreover, the Democrats will also be able easily to control final votes on legislation.[2]

But even with party fidelity, the way the votes are to be taken on one matter would put the Democrats in control by the skin of their teeth. The change in party affiliation—or temporary defection—of just one vote could deprive the Democrats of that bit of "control." The matter I have in mind will never come before the House that will convene in January, but the precariousness of the Democrats' control in such a count should provide a warning sign for the future—for the Democrats, to be sure, but more importantly, for all of us.

November 28, 2006

[Editor's Note: The following piece is an informal dialogue between Professors Solum and Bennett which grew out of Bennett's prior piece on the Colloquy, Electoral College Reform Ain't Easy (click here to read the original piece). Other readers wishing to participate in this dialogue are invited to submit a piece to the Colloquy Editor, or to leave a comment below.]

Solum:

I recently posted about Bennett's very interesting piece on Legal Theory Blog: Bennett on Electoral College Reform. My post quoted a long passage, but in this comment I want to focus on the following:

If we took the argument for constitutional protection [of an elector's right to vote contrary to instructions] seriously, we would also have to take seriously other aspects of the original conception of the presidential selection process. For instance, neither political party designation nor the names of presidential and vice presidential "candidates" could appear on ballots, because that is a way of signaling pre-commitment of electors, rather than a process of debate and discussion that was the reason for creating the electoral college.

My post then commented:

Bennett's argument simply does not follow. From the fact that the Constitution contemplates that electors can vote free of instruction, it simply does not follow that ballots cannot list candidate names or party affiliations. There is a tension at the level of rationale, but such tensions are ubiquitous in the law.

November 01, 2006

At the end of September California's Governor Arnold Schwartzenegger vetoed legislation that would have assigned the state's huge chunk of 55 electoral votes to the winner of the nationwide popular vote—once other states with 215 additional electoral votes were similarly committed. The total of 270 electoral votes would represent the required electoral college majority and hence seemingly guarantee that the nationwide vote winner would become president. This would make impossible what happened in 2000—and in two or three other presidential elections over the years—where the electoral college winner lost the nationwide popular vote.

It's not hard to understand the Governor's veto. Under the legislation, California's electoral votes could go to a candidate who had lost the statewide vote. A shift of those 55 electoral votes could thus award the presidency to a candidate whom California's voters had rejected, perhaps by a large margin. Still, there are substantial arguments in favor of the legislation, even from the vantage point of California's self-interest. California—along with lots of other states—has been quite predictable in recent presidential elections. As a result, candidates of both major parties campaign very little in the state. They lavish attention—including campaign promises—on "swing" states instead. If the nationwide vote determined the outcome, California (and other politically lopsided states) could expect to receive a good deal more attention from candidates of both political parties.